Bulstrode & Bulstrode - [2023] FedCFamC1A 101

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Bulstrode & Bulstrode [2023] FedCFamC1A 101

Appeal from: Bulstrode & Bulstrode [2023] FedCFamC2F 31

Appeal number: NAA 36 of 2023

File number: NCC 4739 of 2020

Judgment of: AUSTIN J

Date of judgment: 26 June 2023

Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where the wife appeals from final orders made under Part VIII of the Family Law Act 1975 – Where the wife’s grounds of appeal allege error by the manner in which the primary judge evaluated single expert opinion evidence – Where the primary judge was entitled to rely upon unchallenged expert opinion evidence – Appeal dismissed – Where the appeal was wholly unsuccessful – Where the respondent sought costs of the appeal – Appellant to pay the respondent’s costs of the appeal in a fixed sum.

Legislation:
Family Law Act 1975 (Cth) Pt VIII, s 106B

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Div 7.1.6, rr 7.10, 7.11, 7.27, 12.17

Number of paragraphs: 43

Date of hearing: 26 June 2023

Place: Newcastle

Solicitor for the Appellant: Seton Family Lawyers

Counsel for the Respondent: Mr Mueller

Solicitor for the Respondent: Fowler Predny Legal
ORDERS

NAA 36 of 2023
NCC 4739 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS BULSTRODE

Appellant

AND:
MR BULSTRODE

Respondent

order made by:

AUSTIN J

DATE OF ORDER:

23 June 2023

THE COURT ORDERS THAT:
1.Leave is granted to the respondent to rely upon his Summaries of Argument filed on 25 May 2023 and 16 June 2023.
2.The appeal is dismissed.
3.The appellant shall pay the respondent’s party/party costs of and incidental to the appeal, fixed in the sum of $10,000, which sum is to be paid by the deduction of that amount from the sum due and owing by the husband to the wife pursuant to Order 4(b) made on 27 January 2023.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under a pseudonym Bulstrode & Bulstrode has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENT
AUSTIN J:

This appeal is brought from property settlement orders made between the parties under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) on 27 January 2023.
The appeal is prosecuted by the wife with a view to increasing her share of the parties’ property by the comparatively small amount of $21,300, in circumstances where the primary judge found the net value of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FedCFamC1A 101
Decision Date

CaseChat Overview and Summary

In the case of Bulstrode & Bulstrode, the husband and wife were married in 2000 and separated in 2015. The husband had established two corporations during the marriage, B Pty Ltd and C Pty Ltd, and was the sole director and shareholder of both. The wife commenced proceedings seeking property settlement relief in December 2020, and during the proceedings, the husband transferred his shareholding in C Pty Ltd and other assets of B Pty Ltd to his mother, who was later joined as the second respondent in the proceedings. The wife sought an order under s 106B of the Family Law Act setting aside the transfer to the second respondent of the husband’s shares in C Pty Ltd.

The primary judge found in favour of the wife, bringing the husband’s shareholding in C Pty Ltd and the chattels of B Pty Ltd back into the matrimonial pool of property. The primary judge found that the contributions to the marriage favoured the wife over the husband in respective proportions of 55/45 per cent and found no adjustment to their contribution-based entitlements was warranted. On the premise of those findings, the primary judge set aside the transfer of C Pty Ltd shares and B Pty Ltd assets by the husband to the second respondent, ordered the husband to pay the wife $91,880, ordered the husband to return some photographs to the wife, and otherwise ordered the parties to retain their personal property and bear responsibility for their own debts.

The husband appealed the decision of the primary judge, alleging error in the evaluation of the single expert opinion evidence and inadequate reasons. The appeal was dismissed with costs. The court found that the primary judge had not erred in evaluating the single expert opinion evidence and that the reasons provided were adequate. The orders of the primary judge were upheld.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons which follow, the appeal is dismissed with costs.Background The parties married in 2000. During the marriage, the husband established two corporations as vehicles for the conduct of a business. The first, B Pty Ltd (“B Pty Ltd”), owned and operated the business. The second, C Pty Ltd (“C Pty Ltd”), owned the vehicles and equipment used in the business. The husband was the sole director and shareholder of both corporations. The timing of the parties’ separation was contentious. The husband alleged July 2013, but the wife alleged July 2015. The primary judge found the latter (at [62]). The wife commenced proceedings seeking property settlement relief in December 2020. During the proceedings, orders were made for the appointment of two single experts to provide expert valuation evidence. Mr E was appointed to value the vehicles and equipment of C Pty Ltd, while Mr D was appointed to value B Pty Ltd and C Pty Ltd, taking into account Mr E’s valuation evidence. In July 2022, the husband transferred to his mother his shareholding in C Pty Ltd and other assets of B Pty Ltd. She was then joined to the proceedings as the second respondent in October 2022. The wife sought an order under s 106B of the Act setting aside the transfer to the second respondent of the husband’s shares in C Pty Ltd. The proceedings were heard in November 2022 and judgment was delivered in January 2023. The primary judge brought the husband’s shareholding in C Pty Ltd and the chattels of B Pty Ltd back into the matrimonial pool of property, found contributions favoured the wife over the husband in respective proportions of 55/45 per cent (at [165]), and found no adjustment to their contribution-based entitlements was warranted (at [181]). On the premise of those findings, the primary judge set aside the transfer of C Pty Ltd shares and B Pty Ltd assets by the husband to the second respondent (Orders 1, 2 and 3), ordered the husband to pay the wife $91,880 (Orders 4, 5, 6 and 7), ordered the husband to return some photographs to the wife (Order 8), and otherwise ordered the parties to retain their personal property and bear responsibility for their own debts (Order 9). The orders mirrored those sought by the wife, save that she wanted to be paid $200,000 (at [36]), whereas the husband proposed the dismissal of the wife’s application and no property settlement orders at all (at [37]). The second respondent sought to keep the assets transferred to her and resist the wife’s application under s 106B of the Act (at [38]).The Appeal The second respondent was neither joined to the appeal nor sought to intervene. The appeal comprises three grounds. The first two grounds allege error by the manner in which the primary judge evaluated the single expert opinion evidence. The third ground contends for inadequate reasons. On 16 June 2023, the husband filed an Application in an Appeal seeking, first, leave to rely upon his Summary of Argument which was filed one day late, and secondly, leave to rely upon supplementary written submissions. The wife commendably acceded to the application, which is consequently granted. Grounds 1 and 2

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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NAA 36 of 2023 NCC 4739 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MS BULSTRODE Appellant
AND:	MR BULSTRODE Respondent

Appeal from:	Bulstrode & Bulstrode [2023] FedCFamC2F 31
Appeal number:	NAA 36 of 2023
File number:	NCC 4739 of 2020
Judgment of:	AUSTIN J
Date of judgment:	26 June 2023
Catchwords:	FAMILY LAW – APPEAL – PROPERTY – Where the wife appeals from final orders made under Part VIII of the Family Law Act 1975 – Where the wife’s grounds of appeal allege error by the manner in which the primary judge evaluated single expert opinion evidence – Where the primary judge was entitled to rely upon unchallenged expert opinion evidence – Appeal dismissed – Where the appeal was wholly unsuccessful – Where the respondent sought costs of the appeal – Appellant to pay the respondent’s costs of the appeal in a fixed sum.
Legislation:	Family Law Act 1975 (Cth) Pt VIII, s 106B Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Div 7.1.6, rr 7.10, 7.11, 7.27, 12.17
Number of paragraphs:	43
Date of hearing:	26 June 2023
Place:	Newcastle
Solicitor for the Appellant:	Seton Family Lawyers
Counsel for the Respondent:	Mr Mueller
Solicitor for the Respondent:	Fowler Predny Legal

order made by:	AUSTIN J
DATE OF ORDER:	23 June 2023